CLA-2 RR:CTF:TCM H257146 EMS
Steven M. Stolarz, CHB
BDP International Inc.
557 S. Douglas Street
El Segundo, CA 90245
RE: Reconsideration of NY A82056 and NY N251200; Classification of Tamper-Resistant Packaging Bands; Heat Shrink Seals Made of Polyvinyl Chloride; Other Closures of Plastics of Heading 3923
Dear Mr. Stolarz:
This is in reply to your letter dated June 4, 2014, on behalf of R.B. Dwyer Company, Inc., requesting reconsideration of NY A82056, dated April 17, 1996, and NY N251200, dated April 21, 2014. In both rulings, U.S. Customs and Border Protection (“CBP”) classified certain heat shrink bands under subheading 3923.50.0000 of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: … Stoppers, lids, caps and other closures.”
Pursuant to your reconsideration request, we have reviewed of NY A82056 and NY N251200. This ruling, HQ H257146, affirms the holdings in both cases.
FACTS:
The heat shrink bands are collectively described as “tamper-evident packaging bands,” which are composed of narrow strips of polyvinyl chloride (“PVC”) material that are shaped to fit the contour of various containers. After importation, the bands are applied to containers at the point where the cap or lid meets the wall and then heat-shrunk into position to form a seal. The bands, once applied, typically cover the edge of the cap or lid and extend downward to below the closure so as to also cover some portion of a container. The function of the bands is to provide protection from surreptitious removal of a container’s cap or lid during the transport and retail display life of that container, i.e., to prevent tampering with its contents. It is intended that the end users of the contents of a container will remove and discard the bands after purchase.
In NY A82056, the bands were described, in relevant part, as follows:
Numerous samples were submitted with your ruling request; all are composed of polyvinyl chloride. … A third group of samples is identified as heat shrink seals. These seals are circular and are designed to be placed over the mouth of a container to prevent tampering.
In NY N251200, the bands were described as follows:
The samples provided with your request are identified as tamper-resistant packaging bands. They are in the form of heat shrinkable band-shaped seals of various dimensions made of polyvinyl chloride (PVC) plastic sheeting, shaped to fit the contours of various containers. The bands are placed over the point where the opening of the container meets the wall of the container and are then heat shrunk into position, thus providing protection from unwanted entry during the transport and retail display of the packaging container.
It is our understanding that the bands in both cases are substantially similar, if not identical. We note that it has been alleged that the descriptions provided for the bands in both rulings (as quoted herein) are in error, as a matter of fact, to the extent that they may be construed as meaning that the bands actually cover the entirety of the mouth of a container. We note that the bands have an open center and, in the absence of the cap, there would be no closure for the bottles, as the bands neither cover the entirety of the mouth of a container nor do they significantly enhance, if at all, the restraining capability of the actual cap.
ISSUE:
Whether the heat shrink bands are classified as “stoppers, lids, caps and other closures” under subheading 3923.50, HTSUS, or as “other articles for the conveyance or packing of goods” under subheading 3923.90, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
3923 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:
* * *
3923.50.0000 Stoppers, lids, caps and other closures
3923.90.00 Other:
* * *
3923.90.0080 Other
In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 3923 provide, in relevant part, as follows: “This heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products. The articles covered include: … (c) Stoppers, lids, caps and other closures.”
The ENs do not impose a limitation on the eo nomine provision for “stoppers, lids, caps and other closures” in heading 3923. See HQ 963168, dated May 22, 2000. While these articles may be for the packing or conveyance of goods, as stated in the ENs, they are not limited to that functionality. In HQ H047559, dated March 16, 2010, CBP explained as follows:
At the outset we note that the phrase "Articles for conveyance or packing of goods, of plastics" is separated by a semicolon from the phrase "stoppers, lids, caps and other closures, of plastics." Items separated by semi-colon in the headings of the HTSUS need to be considered separately for the purposes of classification. See HQ 956924, dated August 25, 1994. The semicolon signals the end of an article description and the beginning of another article description. See HQ 087835, dated January 8, 1991. Therefore, heading 3923, HTSUS, is not only limited to caps for the conveyance or packing of goods of plastics. See HQ 966963, dated April 30, 2004, in which CBP classified plastic screw caps not used for the packing and conveyance of products in subheading 3923.50.00, HTSUS.
CBP’s interpretation as to the scope of subheading 3923.50, HTSUS, which is also an eo nomine provision for “stoppers, lids, caps and other closures,” is well established. See, e.g., the following rulings, which classified their respective products under subheading 3923.50, HTSUS: NY 883114 (March 12, 1993) (plastic container lids with holes of various shapes punched into them); and, NY M86428 (September 29, 2006) (polypropylene lids for cups that were designed to keep sand and insects out of beverages served outdoors, which were classified as caps of subheading 3923.50 notwithstanding the center hole in each cap that was designed to accommodate a straw).
What the foregoing rulings demonstrate is that articles classified under subheading 3923.50, HTSUS, include “other closures” that neither need to cover the entirety of the mouth of a container nor do they need to enhance the restraining capability of any actual cap or lid for a container. That said, the bands described in NY N251200 and NY A82056 are considered, commercially, to be “indicative seals,” i.e., they are a type of secondary closure that contributes to the function of the primary closure of a container to prevent unauthorized access to its contents. In NY N066440, dated July 24, 2009, CBP analyzed a variety of products that are indicative seals, which are “used to provide evidence of tampering.” Some of the products were described as follows:
The Flexiseal is a one-piece indicative seal made of nylon plastic measuring approximately 7 ½ inches in length. The seal consists of a long thin saw-tooth type strip that loops back over itself and threads through a slot in the wide end of the seal by means of a ratcheting action. The top portion of the seal may be printed with logos or numbers. The seal cannot be removed without being broken, thus providing evidence of tampering. The Flexiseal is supplied in mats of ten strips connected together, in boxes of 1000 seals. It is used as an indicative seal in applications such as catering or airline trolleys, distribution or tote boxes, or ATM cassettes.
The Envotite is an indicative seal for use on fire extinguishers. It is constructed of polypropylene plastic and is similar in style to the Flexiseal. It is designed so that the narrow bead-like strip fits through the aperture on the fire extinguisher’s operating handle and then loops around and threads into a hole at the wide top end of the seal. The Envotite is supplied in mats of ten strips connected together, in boxes of 1000 seals. It is used as a seal that indicates if the extinguisher has been operated or tampered with.
CBP classified both of the products described above in subheading 3923.50, HTSUS, in NY N066440. Those seals perform the same function as the bands described in NY N251200 and NY A82056. Moreover, those seals offer even less standalone coverage of the products to which they are applied than do the bands described in NY N251200 and NY A82056. CBP has also classified other comparable products in subheading 3923.50, HTSUS. See, e.g., NY 874430 (June 24, 1992) (heat shrinkable seals with the words “Diet Center” printed on them, to be placed over the cap and neck of a bottle); and, NY 875364 (June 24, 1992) (heat shrinkable bands composed of PVC that are used to create “tamper evident seals on bottles and jars used in the food, drug and packaging industries”).
In light of the above, the classification of the bands described in NY N251200 and NY A82056 under subheading 3923.50, HTSUS, is consistent with longstanding CBP precedent.
HOLDING:
By application of GRIs 1 and 6, the tamper-resistant packaging bands and heat shrink seals made of PVC are classified under heading 3923, HTSUS, and specifically under subheading 3923.50.0000, HTSUS, which provides for “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: … Stoppers, lids, caps and other closures.” The column one, general rate of duty is 5.3%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY A82056, dated April 17, 1996, and NY N251200, dated April 21, 2014, are AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division